This Article draws from, builds upon, and continues my prior article addressing the conversion of canons of construction into “canonical” queries in both the public and private sphere.1 In this Article, I continue exploring further groups of canons and queries of transmitted/presented text including those outlined in appendices of my prior article. These further groups include: Queries of Signifier Scope (the Ejusdem Generis Query, the Noscitur a Sociis Query, the Expressio Unius Query, the Antecedent/Subsequent Query, and the Anaphora Query); Queries of Signifier Fit and Coherence (the Whole Text Query, the No Surplusage Query, the Absurdity Query, the Scrivener’s Error Query, the Exercise of Power Query, the Consistent Meaning Query, the Fit with the Surrounding Text Query, the In Pari Materia Query, the Particular vs. General Query, the Ellipsis Query, the Conjunction Query, the Disjunction Query, the General Query of Severability, the Relevance Query, the Presupposition Query, and the Preconception Query); and Queries of Context (including Queries turning on Linguistic, Physical, Cognitive, Type of Discourse, or Other Relevant Contexts).
As discussed in detail in my prior article, there is more than mere disagreement as to the purpose and nature of canons of construction. Even where one assumes a particular purpose or nature of the canons (such as directives or heuristics), canons can crossfire, fire on themselves, and otherwise misfire. Take for example the rule providing, “Drivers must drive on the right side of the road.” The expressio unius canon (taken roughly for purposes of this paragraph as expression of one thing excludes the other) might tell us that we cannot drive on the left side of the road under any circumstances, whereas the absurdity canon (taken roughly for purposes of this paragraph as rejecting readings reasonable persons would reject) might tell us this is not the case, for example, where we might safely pass on the left or might safely use the left when the right side is blocked.
As I have previously addressed such cross-firing (and other firing) problems of canons I will not dwell on such hazards here. Instead, I will continue exploring how canons can nonetheless be recast as quite useful queries. For example, we could have an expressio unius query that asks whether the rule maker intended that left-road driving be ever banned, and we could also have an absurdity query that probes whether the rule maker could have intended such “absurd” results as prohibiting an ambulance to pass on the left in an emergency. I shall address in such a fashion below the remaining queries of presented/transmitted text covered by this Article.
In doing so, I will explore the canons and queries in areas of both interpretation and construction. As used in this Article, interpretation involves the search for linguistic meaning while construction involves the search for legal meaning. For example, we might imagine the interpretation and construction of an unwitnessed sales contract with very clear language in an iron-fisted jurisdiction that requires four witnesses to the contract. Interpretation would survey the very clear linguistic meaning whereas construction would nonetheless find the contract lacking legal force because of the witness deficiency. With these introductory points behind us, we are ready to turn to retooling more canons into queries.
